Parental Prisoners: The Incarcerated Mother's Constitutional Right to Parent
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Journal of Criminal Law and Criminology
Volume 108 | Issue 3 Article 4
Summer 2018
Parental Prisoners: The Incarcerated Mother's
Constitutional Right to Parent
Emily Halter
Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc
Part of the Criminal Law Commons
Recommended Citation
Emily Halter, Parental Prisoners: The Incarcerated Mother's Constitutional Right to Parent, 108 J. Crim. L. & Criminology 539 (2018).
https://scholarlycommons.law.northwestern.edu/jclc/vol108/iss3/4
This Comment is brought to you for free and open access by Northwestern Pritzker School of Law Scholarly Commons. It has been accepted for
inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern Pritzker School of Law Scholarly Commons.HALTER 5/31/18 1:32 PM
0091-4169/18/10803-0539
THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 108, No. 3
Copyright © 2018 by Emily Halter Printed in U.S.A.
COMMENTS
PARENTAL PRISONERS: THE
INCARCERATED MOTHER’S
CONSTITUTIONAL RIGHT TO PARENT
EMILY HALTER*
The United States prison population has grown at alarming and unprec-
edented rates in recent decades, with certain states imprisoning more indi-
viduals than entire countries. Recently, the number of incarcerated women
has climbed faster than that of men. The high rate of female incarceration
has devastating effects on society, as many women are mothers and primary
caregivers. Furthermore, every year, a number of mothers give birth in
prison. When this happens, the mother’s family and loved ones are often not
permitted to be present. The mother gives birth in a room with only medical
personnel and prison guards. She then generally has fewer than forty-eight
hours to spend with her child before he or she is taken away. Sometimes the
child is fortunate enough to live with other family members, but other times,
the child is placed in the foster care system. Due to a number of restrictions
and obstacles, many incarcerated women are forced to forfeit their paternal
rights during incarceration.
While some programs exist in the United States, for the most part, there
are few avenues of support for incarcerated mothers. This Comment explores
the possibilities currently available to incarcerated mothers, arguing that the
Fourteenth Amendment to the United States Constitution guarantees the right
* B.A., Lewis & Clark College, 2014; J.D. candidate, Northwestern University Pritzker
School of Law, 2018. I want to dedicate this piece to all of the currently and formerly incar-
cerated mothers across the country. You are beautiful, you are strong, and you are loved. I
also want to thank my parents, Steve and Andrea, and my sister, Molly, for being forever
supportive. Thank you to all of the members of the Journal of Criminal Law and Criminology
for editing my piece. Thank you to Professor Kim Yuracko for providing feedback. Finally,
a huge thank you to Professor Alan Mills for providing so much guidance.
539HALTER 5/31/18 1:32 PM
540 HALTER [Vol. 108
to parent and that right should be extended to incarcerated mothers.
TABLE OF CONTENTS
INTRODUCTION................................................................................... 540
I. WHY AND HOW WOMEN END UP INCARCERATED ......................... 546
II. EXISTING PROGRAMS .................................................................... 549
A. PRISON NURSERIES .......................................................... 549
B. COMMUNITY-BASED RESIDENTIAL PARENTING
PROGRAMS .............................................................................. 550
III. PARENTAL RIGHTS UPON INCARCERATION ................................. 551
IV. FOURTEENTH AMENDMENT RIGHT TO PARENT........................... 553
V. THE LOGIC OF TURNER GRANTS INCARCERATED MOTHERS THE
RIGHT TO PARENT ................................................................... 557
VI. POLICY JUSTIFICATIONS .............................................................. 561
A. WELL-BEING OF THE CHILDREN ...................................... 561
B. BENEFITS FOR THE MOTHERS .......................................... 563
C. COMMON ARGUMENTS AGAINST PARENTAL RIGHTS FOR
INCARCERATED MOTHERS ...................................................... 564
D. CONTESTED METHODS..................................................... 565
VII. ADDITIONAL BARRIER: ADOPTION AND SAFE FAMILIES ACT OF
1997 ......................................................................................... 565
CONCLUSION ...................................................................................... 566
INTRODUCTION
“My little baby, she doesn’t even know what’s coming.”1 New mother,
Kayla, cried on the phone to her mother and sister while shackled to the hos-
pital bed.2 Just hours before, she had given birth to a beautiful, healthy baby
girl.3 However, Kayla’s experience is far from the experience of most moth-
ers in the United States. During her pregnancy, Kayla was serving a prison
sentence at Logan Correctional Center in Lincoln, Illinois.4 She was preg-
nant at the time of her arrest, and thus was required to carry her pregnancy to
term from inside the prison walls.5 Treated differently from the beginning,
she was ordered to wear a pink jumpsuit, designating her soon-to-be mother
1
MAYA SCHENWAR, LOCKED DOWN, LOCKED OUT 84 (2014).
2
Id.
3
Id.
4
Id. at 81.
5
See generally id.HALTER 5/31/18 1:32 PM
2018] PARENTAL PRISONERS 541
status.6 Rather than decorate a nursery and pick out baby clothes in anticipa-
tion of her daughter’s arrival, Kayla was forced to fear the day she would
meet her daughter and soon after say goodbye to her. Kayla knew that right
after giving birth, she would return to prison alone, without her daughter.7
As her due date approached, she was taken to the hospital, and her labor
was induced.8 None of her family members were allowed to be present.9 The
only people allowed in the room with Kayla during some of the most un-
pleasant, yet life-changing, hours of her life were the prison guards and med-
ical personnel.10 After meeting her daughter, Angelica, Kayla had fewer than
two days with her before Angelica was taken and Kayla returned to prison
alone, without the child that she had carried inside her for the previous nine
months.11 The only communication she was permitted to have with the out-
side world during this time was “one call” with her mother and sister.12 As
she held her daughter close, savoring every precious second, she cried: “Oh
my God, she is so beautiful. And I love her, I love her, I love her, and I just
want to hold her forever.”13
This is the true story of one woman’s experience giving birth while in-
carcerated, which is further detailed in Maya Schenwar’s Locked Down,
Locked Out: Why Prison Doesn’t Work and How We Can Do It Better.14 This
story, while unbelievably tragic, is not all that unique or uncommon for in-
carcerated women.15 Mothers in both jails and prisons across the country go
through similarly tragic experiences.16 The vast majority of incarcerated
women carry their pregnancies to term, give birth in isolation, and are then
separated from their children immediately.17 Often, incarcerated mothers
struggle to get to know their children or maintain a positive relationship upon
release.18 Kayla was fortunate because her new daughter was able to live
with family while she served the remainder of her sentence.19 However,
many mothers are not as lucky. Other incarcerated women end up at least
6
Id. at 81.
7
Id. at 83.
8
Id. at 82.
9
Id.
10
Id. 82–83.
11
Id. at 83.
12
Id. at 82–83.
13
Id. at 84.
14
Id. at 85.
15
Id.
16
Id.
17
Id.
18
Id.
19
Id. at 87.HALTER 5/31/18 1:32 PM
542 HALTER [Vol. 108
temporarily losing their children to the foster care system, and some lose cus-
tody permanently.20
Though incarceration rates in the United States have started to decrease,
there are still far too many people in prison.21 As of 2016, state and federal
prisons in the United States held a combined total of roughly 1.6 million peo-
ple.22 Women uniquely feel the effects of mass incarceration.23 For a number
of reasons, the number of incarcerated women has continued to increase,
jumping 646% between 1980 and 2012, far quicker than the speed of male
incarceration.24 Women are currently the fastest growing segment of the
prison population, accounting for a larger portion than ever before.25 In 2014,
there were a total of 215,332 women incarcerated, with 106,232 women in
prisons and 109,100 in jails.26
The high rate of female incarceration is made more problematic when
looking at the effect that it has on the rest of society. Almost two-thirds of
incarcerated women in U.S. prisons are mothers.27 Because the median age
of incarcerated women is thirty-four, many of these women are new mothers
20
LAUREN E. GLAZE & LAURA M. MARUSCHAK, BUREAU OF JUST. STAT. SPECIAL REP.,
PARENTS IN PRISON AND THEIR MINOR CHILDREN 5 (Aug. 2008), https://www.bjs.gov/con-
tent/pub/pdf/pptmc.pdf. In 2004, 10.9% of mothers in state prison had children in foster
homes or other government agencies. Id.; Jennifer Warner, Infants in Orange: An Interna-
tional Model-Based Approach to Prison Nurseries, 26 HASTINGS WOMEN’S L.J. 65, 69–70
(2015).
21
See generally Matthew Friedman, Just Facts: The U.S. Prison Population is Down (A
Little), BRENNAN CTR. JUST. (Oct. 29, 2015), https://www.brennancenter.org/blog/us-prison-
population-down-little.
22
Peter Wagner & Bernadette Rabuy, Mass Incarceration: The Whole Pie 2016, PRISON
POL’Y INITIATIVE (Mar. 14, 2016), https://www.prisonpolicy.org/reports/pie2016.html.
23
See generally Sharona Coutts & Zoe Greenberg, Women, Incarcerated, PRISON LEGAL
NEWS (June 3, 2015), https://www.prisonlegalnews.org/news/2015/jun/3/women-incarcer-
ated/; Nicholas Kristof, Mothers in Prison: “Prison got me sober, but it didn’t get me any-
where.,” N.Y. TIMES (Nov. 25, 2016), http://www.nytimes.com/2016/11/25/opinion/sun-
day/mothers-in-prison.html?mwrsm=Facebook&_r=1.
24
Coutts & Greenberg, supra note 23.
25
Fact Sheet: Incarcerated Women and Girls, SENT’G PROJECT 1 (Nov. 2015)
http://www.sentencingproject.org/wp-content/uploads/2016/02/Incarcerated-Women-and-
Girls.pdf; Valentina Zarya, This is Why Women are the Fastest-Growing Prison Population,
FORTUNE (Dec. 10, 2015), http://fortune.com/2015/12/10/prison-reform-women/.
26
Fact Sheet: Incarcerated Women and Girls, supra note 25, at 1. 2014 was the last time
that this particular survey was conducted; therefore, it is the most recent information available.
Id. The United States accounts for 30% of the world’s incarcerated women, but only 5% of
the world’s female population. Aleks Kajstura & Russ Immarigeon, States of Women’s Incar-
ceration: The Global Context, PRISON POL’Y, https://www.prisonpolicy.org/global/women/
(last visited: Sept. 9, 2017).
27
SCHENWAR, supra note 1, at 85.HALTER 5/31/18 1:32 PM
2018] PARENTAL PRISONERS 543
with young children,28 and 60% of women in state prisons have children un-
der the age of eighteen.29 Once incarcerated, mothers are frequently sepa-
rated from their young children for considerable amounts of time, given that
the average sentence for a mother is over four years.30 As a result, of the 74
million children in the United States in mid-2007, 1.7 million, or 2.3%, had
a mother or father in prison.31 At that time, prisons held 744,200 fathers and
65,600 mothers, with the number of mothers growing faster than the number
of fathers.32 According to a 2004 survey conducted by the Bureau of Justice
Statistics, 16% of the children of federally incarcerated inmates and 23% of
state inmates were age four or younger.33 More than one-third of children
would reach the age of eighteen before their parents were released from
prison.34 Experts believe that the number of children with incarcerated moth-
ers is actually much higher than the recorded numbers because law-enforce-
ment agencies are not required to gather specific information on prisoners’
children, and many women fear that they will lose their children to the child
welfare system if they disclose their children’s existence to law enforce-
ment.35
Estimates are that between 4% and 7% of women entering prison are
pregnant, and most carry their pregnancies to term.36 A small portion of these
women become pregnant while in prison as a result of rape by prison
guards.37 Unfortunately, after giving birth, most of these women still have
time left on their sentences, which separates new mothers from their infants
for various periods of time.38 On average, pregnant prisoners serve an addi-
tional six to twelve months after having their babies.39
After giving birth in prison, women face a host of physical and emo-
tional problems. Perhaps the most difficult problem is being separated from
28
Coutts & Greenberg, supra note 23.
29
Kristof, supra note 23.
30
James G. Dwyer, Jailing Black Babies, 2014 UTAH L. REV. 465, 467 (2014).
31
GLAZE & MARUSCHAK, supra note 20, at 2.
32
Id.
33
Id. at 3.
34
Id.
35
Ann Farmer, Mothers in Prison Losing All Parental Rights, WOMEN’S ENEWS (June 21,
2001), http://womensenews.org/2002/06/mothers-prison-losing-all-parental-rights/.
36
SCHENWAR, supra note 1, at 85; See Victoria Law, Pregnant and behind bars: how the
US prison system abuses mother-to-be, GUARDIAN (Oct. 20, 2015), https://www.theguard-
ian.com/us-news/2015/oct/20/pregnant-women-prison-system-abuse-medical-neglect (esti-
mating that 3% of women in federal prisons, 4% of women in state prisons, and 5% of women
in local jails are pregnant).
37
Dwyer, supra note 30, at 467.
38
SCHENWAR, supra note 1, at 85.
39
Id.HALTER 5/31/18 1:32 PM
544 HALTER [Vol. 108
their children. In most states, incarcerated women must give up their new-
born babies within a few hours of delivery.40 As a result, mothers are fre-
quently denied the ability to nurse their newborns or to spend time and bond
with them.41 To make matters worse, these women are also frequently denied
postpartum placement counseling and have a limited role in choosing who
will raise their children during their incarceration.42
States take different approaches in addressing how much time an incar-
cerated mother may spend with her newborn.43 Most states allow mothers
twenty-four hours with their infants, while some allow forty-eight.44 How-
ever, some states have prison nursery programs that allow mothers to stay
with their babies for a longer period of time.45 As an alternative to prison
nursery programs, a few states also offer community-based residential par-
enting programs.46
If programs like these are not an option for a new mother, which is the
case for a majority of incarcerated women in the United States, she has a few
options.47 She can put the newborn up for adoption, put the newborn into
foster care, or give the newborn to relatives.48 For many incarcerated moth-
ers, there is a decent chance that the court will terminate their parental rights
as a result of incarceration.49 If parental rights are terminated, the mother is
not legally the child’s parent anymore.50 She loses the right to visit or talk
with the child and the right to decide how the child is raised and taken care
of.51 The child may also be adopted without her permission.52 This harsh
reality is unsettling and arguably unconstitutional. Forcing incarcerated
40
Sarah Yager, Prison Born, ATLANTIC (Jul./Aug. 2015), https://www.theatlan-
tic.com/magazine/archive/2015/07/prison-born/395297/.
41
Deborah Ahrens, Incarcerated Childbirth and Broader “Birth Control”: Autonomy,
Regulation, and the State, 80 MO. L. REV. 1, 30 (2015).
42
Id.
43
Emily Kaiser, Pregnant in Prison: 6 Shocking Realities About Giving Birth Behind
Bars, CRIMEFEED (June 11, 2015), http://crimefeed.com/2015/06/6-things-youll-experience-
giving-birth-prison/.
44
Id.
45
Warner, supra note 20, at 72.
46
Anne E. Jbara, The Price They Pay: Protecting the Mother-Child Relationship Through
the Use of Prison Nurseries and Residential Parenting Programs, 87 IND. L.J. 1825, 1825
(2012).
47
See Warner, supra note 20, at 67–68.
48
Id. at 68.
49
Id. at 69.
50
Educ. for Just., Termination of Parental Rights (TPR), LAWHELPMN 1 (2018),
https://www.lawhelpmn.org/files/1765CC5E-1EC9-4FC4-65EC-957272D8A04E/attach
ments/1F9ED560-F5C1-484D-8909-C20090BC9C37/f-10-termination-of-parental-rights.
pdf.
51
Id.
52
Id.HALTER 5/31/18 1:32 PM
2018] PARENTAL PRISONERS 545
mothers and their children to live apart is a tragic policy, and one that sepa-
rates the United States from most other countries in the world.53 It is imprac-
tical and ill-advised and has life-long detrimental effects on both mother and
child.
For decades, the Supreme Court has recognized the constitutionally pro-
tected right to parent under the Fourteenth Amendment.54 While the Supreme
Court has chipped away at the rights of prisoners in other areas, finding that
many rights are forfeited at the prison doors, it has never ruled on the status
of parental rights during incarceration.55
This Comment argues that incarcerated mothers have a right to parent
their children under the Fourteenth Amendment, and thus, infants should be
allowed to remain with their incarcerated mothers for some period of time
through programs such as prison nurseries or community-based alternatives.
However, even if courts do not find that such a right guarantees mothers the
physical right to parent while incarcerated, legislatures should protect incar-
cerated women’s ability to parent for policy reasons. Part I briefly discusses
the few programs that currently exist to allow incarcerated mothers to remain
with their infants and young children.56 Part II outlines what happens to pa-
rental rights once a mother is incarcerated, considering who generally cares
for the children and how difficult it is for a mother to regain parental rights
once she loses them.57 Part III gets to the heart of this legal issue by illustrat-
ing that the Supreme Court has, for years, read the Fourteenth Amendment
to establish and protect a fundamental right to parent.58 This Part ends with
53
Warner, supra note 20, at 66–80. Outside of the United States, only a small number of
countries do not have prison nurseries, and the prison nurseries that they have allow the child
to stay with the mother for much longer. Id. at 66. Germany’s Preungesheim prison is con-
sidered to be the world’s most comprehensive program for imprisoned women and their chil-
dren, recognizing motherhood “as a bona fide job.” Id. at 76. Low-security women can keep
their children with them until the age of five, while high-security women can keep them until
the age of three. Id. In Bolivia, mothers and fathers are permitted to bring their children to
prison with them, as long as the children are age six and younger. Id. at 77. Mothers in
Colombia are allowed to keep their children in prison with them until they reach the age of
three. Id. at 78. In Mexico, there are roughly two thousand children under the age of six living
with their mothers in prison. Id. In Kenya’s Lang’ata prison, women are allowed to keep their
children in prison with them until they reach four years old. Id. at 80.
54
See generally Troxel v. Granville, 530 U.S. 57 (2000).
55
See Overton v. Bazzeta, 539 U.S. 126 (2003) (chipping away at the rights of prisoners
by upholding prison regulations restricting the visitation rights of inmates). The Court in
Overton recognized that outside of the prison context, individuals have a right to maintain
certain familial relationships, but freedom of association is a right “least compatible” with
incarceration because the very object of imprisonment is confinement. Id; see also Gerber v.
Hickman, 291 F.3d 617, 619 (9th Cir. 2001).
56
See infra Part I.
57
See infra Part II.
58
See infra Part III.HALTER 5/31/18 1:32 PM
546 HALTER [Vol. 108
a discussion of Turner v. Safley,59 which justifies protecting the parental
rights of incarcerated mothers.60 Part IV continues to apply the logic used by
the Court in Turner61 to evince that the parental rights of incarcerated mothers
are protected under the Fourteenth Amendment and should be treated by
courts as such.62 Part V addresses the policy arguments for and against al-
lowing incarcerated mothers to remain with their infants.63 Finally, Part VI
explains two particular policies that disproportionately impact incarcerated
mothers and further support the protection of an incarcerated mother’s right
to parent.64 This Comment concludes by acknowledging that while the pa-
rental rights of incarcerated mothers should be protected, it is difficult to
identify the best method for protecting those rights.65 Acknowledging the
importance of maintaining the mother-child relationship during a mother’s
term of incarceration is a critical first step; however, the courts and legisla-
tures need to take steps to repeal harmful legislation and pass beneficial leg-
islation encouraging programs to support incarcerated mothers.
I. WHY AND HOW WOMEN END UP INCARCERATED
Our current system operates against women, many of whom are moth-
ers. Both custody statutes66 and drug laws67 act together to make matters
worse for incarcerated females. The effects of these policies provide further
persuasive justifications for allowing women to remain with their infants dur-
ing incarceration. As this Comment will explain, the nationwide enforcement
of various drug laws sends a disproportionate number of women to jail, pre-
dominantly minority women. An overwhelming number of these women
need treatment rather than incarceration, and another large portion are incar-
cerated for the behavior of the dominant men in their lives.68 Women often
59
See generally Turner v. Safley, 482 U.S. 78 (1987).
60
See infra Part III.
61
See generally Turner, 482 U.S. at 78.
62
See infra Section IV.
63
See infra Section V.
64
See infra Section VI.
65
See infra Conclusion.
66
SCHENWAR, supra note 1, at 86; see generally Mariely Downey, Losing More Than
Time: Incarcerated Mothers and the Adoption and Safe Families Act of 1997, 9 BUFF.
WOMEN’S L.J. 41, 47 (2000–2001)
67
Women, LGBTQIA+ People & the Drug War, DRUG POL’Y ALL., http://www.drugpol-
icy.org/issues/women-lgbtqia-drug-war (last visited Oct. 10, 2017).
68
Id.; Words from Prison: Women’s Incarceration and Loss of Parental Rights, AM. C.L.
UNION, https://www.aclu.org/other/words-prison-womens-incarceration-and-loss-parental-rig
hts (last visited Nov. 10, 2018) [hereinafter Words from Prison]; Justin Glawe, How Drug
Trafficking Conspiracy Laws Put Regular People in Prison for Life, VICE (Sept. 30, 2015)
https://www.vice.com/en_us/article/how-drug-trafficking-conspiracy-laws-put-regular-peo-
ple-in-prison-for-life-930.HALTER 5/31/18 1:32 PM
2018] PARENTAL PRISONERS 547
face steep sentences for even minor drug offenses.69 To make matters worse,
the Adoption and Safe Families Act makes it difficult for women to keep
custody of their children while they are serving their sentences.70 This has
two implications. First, because it is often difficult for incarcerated women
to maintain custody rights, they should be allowed to remain with their in-
fants while incarcerated since the alternative is likely severing their parental
rights altogether. Second, without addressing the issues with the United
States’ drug and child custody laws, an incarcerated mother’s constitutional
right to parent will never fully be protected.
Drug policies in the United States disproportionately affect women, and
more specifically, mothers.71 In state prisons at the end of 2013, nearly 25%
of women were incarcerated for drug offenses, compared to only 15% of
men.72 The same discrepancy is found in federal prisons.73 At the end of
September 2014, 59% of women were incarcerated for drug offenses, com-
pared to only 50% of men.74 More than 75% of the women incarcerated are
mothers, many of whom are the sole caregivers for their children.75
Conspiracy provisions are considered one of the “most egregious exam-
ples” of the way in which the war on drugs has negatively impacted women,
contributing further to the increase in drug convictions among women.76 Un-
der these provisions, once a prosecutor can establish a “conspiracy,” each
participant can be held liable for the actions of every other member, regard-
less of whether they had any idea what was happening.77 Often, women play
only a very small role in drug sales but are held accountable for the entire
amount of drugs attributed to the conspiracy.78 As a result of conspiracy drug
laws, some women end up going to prison largely because of the criminal
behavior of their husbands, boyfriends, and partners.79 State and federal
prosecutors have a much lower burden of proof for conspiracy drug offenses
than they do for proving other violent crimes, making it easier for these
women to be convicted.80 Furthermore, in these cases, women are frequently
69
Id.
70
SCHENWAR, supra note 1, at 86; Downey, supra note 66, at 47.
71
See generally Fact Sheet: Women, Prison, and the Drug War, DRUG POL’Y ALL. (Feb.
2016), http://www.drugpolicy.org/sites/default/files/DPA_Fact%20Sheet_Women%20
Prison%20and%20Drug%20War%20%28Feb.%202016%29.pdf.
72
Id.
73
Id.
74
Id.
75
Women, LGBTQIA+ People & the Drug War, supra note 67.
76
Id.; see e.g., Words from Prison, supra note 68.
77
Words from Prison, supra note 68.
78
Id.
79
Id.
80
Glawe, supra note 68.HALTER 5/31/18 1:32 PM
548 HALTER [Vol. 108
given harsher sentences because they have little information to trade with law
enforcement, given the fact that they were not acutely aware of what was
going on to begin with.81 Women who refuse to testify against a partner,
even if out of fear of death or injury, can often be forced to serve longer
sentences than the partner who actually committed the crime.82 This is made
more problematic by that fact that in some instances, these convicted women
were in abusive relationships with the actual drug offender that they were
unable to get out of.83 Thus, flaws in our drug policy and criminal justice
system are sending nonviolent, capable mothers to jail, and then preventing
them from raising their children. Coupling conspiracy provisions with harsh
mandatory minimum sentencing laws, it is easy for women to get sent to jail,
but hard for them to get out.84
The fact that many women are imprisoned not for intentional, pre-med-
itated criminal activity, but because they are victims of circumstance, negates
the frequently made argument that they behaved poorly and thus deserve to
lose their parental rights. For example, Angela was a first-generation law
school graduate with a Master’s degree in business.85 She owned a successful
luxury car dealership and was a single mother.86 Wanting a father for her
son, she married an accountant named Andre and eventually allowed him to
take over the book-keeping for her business.87 One day, Andre was arrested,
and Angela was forced to scramble to post his bail.88 Angela followed An-
dre’s instructions and called a client who Andre said owed them money and
wired that money into his account.89 Shortly thereafter, Angela was arrested
because, unbeknownst to her, the man she called was a drug distributor, and
because of the conspiracy statute, Angela was implicated in the entire drug
conspiracy.90
Drug addiction is also accompanied by harsher than necessary punish-
81
Id.
82
Tessie Castillo, How the Drug War Destroys Women’s Lives: Why are women the fast-
ing growing prison population in the US?, ALTERNET (Feb. 12, 2015), http://www.alter-
net.org/news-amp-politics/sexism-drug-war.
83
See e.g., Casey Tolan, How a first-time drug charge became a life sentence for this
mother of two (Dec. 10, 2015), http://fusion.net/story/243253/ramona-brant-life-sentence-
drug-charge/.
84
Women, LGBTQIA+ People & the Drug War, supra note 67.
85
Words from Prison, supra note 68.
86
Id.
87
Id.
88
Id.
89
Id.
90
Id.HALTER 5/31/18 1:32 PM
2018] PARENTAL PRISONERS 549
ment, negatively impacting women and mothers. States respond by incarcer-
ating drug addicted women with little to no treatment.91 Rather than giving
pregnant drug addicts the help they so desperately need and deserve, these
laws ensure that pregnant women are locked up.92 Imprisoning these women
is arguably a much worse alternative than treatment because prisons are not
equipped to handle drug addiction.93 Given this, most women in prison
should not automatically be considered bad mothers. Perhaps if these moth-
ers received drug treatment, rather than a prison sentence, they could be fit to
parent.
II. EXISTING PROGRAMS
A. PRISON NURSERIES
A small number of state and federal prisons around the country operate
prison nurseries and community-based residential parenting programs, which
allow young children to remain with their incarcerated mothers.94
Prison nurseries permit a newborn child to stay with his or her mother
in prison or jail for a certain amount of time.95 As of 2010, nine states offered
prison nursery programs: New York, Nebraska, South Dakota, Ohio, Wash-
ington, Illinois, Indiana, California, and West Virginia.96 Of these nine, six
allow newborns to remain with their incarcerated mother for up to eighteen
months.97 These nurseries range in size, with the maximum number of
mother and infant pairs reaching only twenty-nine at New York’s Bedford
Hills Correctional Facility.98 To qualify for these programs, the mother must
be a nonviolent offender with a clean prison record with no history of child
abuse, and she must have given birth while incarcerated.99 Mothers who had
given birth prior to incarceration, even if only a few weeks before, are ineli-
gible to participate in prison nursery programs.100 Sometimes the prison
nurseries are on the prison grounds in a separate wing, while other times they
91
See Sharona Coutts & Zoe Greenberg, ‘No Hope for Me’: Women Stripped of Parental
Rights After Minor Crimes, REWIRE (Apr. 2, 2015), https://rewire.news/article/2015/04/02/
hope-women-stripped-parental-rights-minor-crimes/. See, e.g., Women, LGBTQIA+ People
& the Drug War, supra note 67.
92
Sharona Coutts & Zoe Greenberg, supra note 91; Women, LGBTQIA+ People & the
Drug War, supra note 67.
93
Id.
94
Jbara, supra note 46, at 1825.
95
Warner, supra note 20, at 66.
96
Id. at 68.
97
Id. at 72.
98
Id. at 72.
99
Id. at 72.
100
Jbara, supra note 46, at 1832.HALTER 5/31/18 1:32 PM
550 HALTER [Vol. 108
are off-site.101 Many prison nursery programs also provide additional support
to mothers, such as parenting classes, counseling, substance abuse treatment,
life skills training, and education.102
More specifically, at Bedford Hills Correctional Facility, mothers can
access “daily parenting classes, daycare, crisis intervention, advocacy, child
placement assistance and discharge assistance,”103 as well as mandated drug
and anger counseling.104 Children and mothers live together in unlocked
rooms that are decorated and contain toys, such that the rooms more closely
resemble a child’s nursery.105 South Dakota, on the other hand, uses a slightly
different prison nursery model.106 It does not limit the number of mother-
infant pairs allowed at one time, but it only allows the pairs to stay in the
nursery for up to thirty days.107 In order to qualify, the only requirement is
that the incarcerated mother be nonviolent; however, qualifying mothers
must pay $288, which is a hindrance for many.108 Mother and infant pairs
live in their own rooms within the general population at the facility.109 How-
ever, infants are still not allowed to be around other general population in-
mates.110
B. COMMUNITY-BASED RESIDENTIAL PARENTING PROGRAMS
Community-based residential parenting programs are similar to prison
nursery programs.111 In a 2010 study, Massachusetts reported having these
community-based alternatives.112 However, the atmosphere of these pro-
grams is quite different from that of prison nurseries, and the programs them-
selves are meant to allow women to take control of their own lives.113 Con-
victed women sentenced to a period of incarceration in these programs are
101
Warner, supra note 20, at 66.
102
Id. at 67.
103
Id. at 72 (quoting Ministerial, Family and Volunteer Services, N.Y. ST. DEP’T OF
CORRECTIONS & CMTY. SUPERVISION, http://www.doccs.ny.gov/ProgramServices/ministe-
rial.html#fsp) (last visited Apr. 19, 2018)).
104
Id.
105
Id.
106
Id. at 73.
107
Id. at 73–74.
108
Id. at 74.
109
Id.
110
Id.
111
Jbara, supra note 46, at 1836–37.
112
See generally REBECCA PROJECT HUM. RTS. & NAT’L WOMEN’S L. CTR., MOTHERS
BEHIND BARS: A STATE-BY-STATE REPORT CARD AND ANALYSIS OF FEDERAL POLICIES ON
CONDITIONS OF CONFINEMENT FOR PREGNANT AND PARENTING WOMEN AND THE EFFECT ON
THEIR CHILDREN, NAT’L WOMEN’S L. CTR. (Oct. 2010), https://nwlc-ciw49tixgw5lbab.stack-
pathdns.com/wp-content/uploads/2015/08/mothersbehindbars2010.pdf
113
Jbara, supra note 46, at 1836–37.HALTER 5/31/18 1:32 PM
2018] PARENTAL PRISONERS 551
allowed to live in the community rather than in prison.114 These community-
based facilities are less restrictive than ordinary prisons and are intended to
feel more like home.115 Most of these programs “allow children to stay with
their mothers until they reach school age,”116 which is in stark contrast to
prison nursery programs’ early age cut-off.117 Oftentimes, a history of sub-
stance abuse is required for admittance into these programs.118
In the 1980s, the United States government established the Mothers and
Infants Nurturing Together (MINT) program.119 This program allows preg-
nant women to live in a “residential setting” from the time their child is born
to the age of three months, and after three months, the inmates can apply for
an extension.120 This program, however, has “stringent requirements”:
women must be in their last three months of pregnancy, have fewer than five
years remaining on their sentences, be eligible for furlough, and pay for the
child’s medical care.121 Only a small number of women in federal prison
participate in MINT, and access is restricted to newborns only.122 In 2010,
there were seven MINT sites around the country, available for only fifty-nine
mother/infant pairs combined across the country.123
III. PARENTAL RIGHTS UPON INCARCERATION
When a child is born, state law automatically gives the child’s birth
mother parental rights, which the state can only remove from someone who
is unwilling or unable to care for her child.124 Parental rights are generally
not terminated at the moment that someone is incarcerated.125 However,
mothers occasionally lose their parental rights during, and as a result of, in-
carceration.126 There are three common ways for an incarcerated mother to
lose her parental rights.127 First, she could lose her rights if “the child is in
114
Id. at 1836.
115
Id. at 1837.
116
Id. at 1836.
117
Id.
118
Id. at 1837.
119
Id.
120
Id. at 1837–38.
121
Id. at 1838.
122
REBECCA PROJECT HUM. RTS. & NAT’L WOMEN’S L. CTR., supra note 112, at 8.
123
Id. at 36.
124
Dwyer, supra note 30, at 476.
125
Id.
126
Pamela Lewis, Behind the Glass Wall: Barriers That Incarcerated Parents Face Re-
garding the Care, Custody and Control of Their Children, 19 J. AM. ACAD. MATRIM. L. 97,
108 (2004).
127
Id. at 109HALTER 5/31/18 1:32 PM
552 HALTER [Vol. 108
the care and custody of the state and the state initiates the proceeding.”128
Second, a woman could also lose her rights if the child’s father remarries and
initiates proceedings so that his new wife can adopt the child.129 Third, the
child can end up living with another family member who initiates adoption
proceedings, thereby severing her rights.130
An incarcerated mother may try to avoid giving up permanent custody
of her child by temporarily signing her custody rights over to another com-
petent adult, using the “power of attorney” privileges.131 However, a study
of incarcerated mothers in Illinois state prisons and the Cook County Jail
from 1990 to 2000 revealed that “these [incarcerated] mothers were one-half
as likely to reunify with their children in foster care than were non-incarcer-
ated mothers whose children were in foster care.”132
According to a 2004 survey of children with mothers incarcerated in
state prisons, 37% lived with their other parent, roughly 45% lived with a
grandparent or set of grandparents, 23% lived with other relatives, 8% lived
with friends, and 11% lived in foster homes.133 Once a child ends up in the
foster system, it is incredibly difficult to get him or her out.134 In order to
regain custody after incarceration, women must find jobs that pay well
enough to support their families, attend parenting programs and substance
abuse classes, if necessary, and study basic life skills.135 It is difficult for
many formerly incarcerated women to find jobs because they often lack a
driver’s license, as well as a high school diploma or equivalent degree.136
Many have issues finding a home where they can live with their children.137
Felons often do not have family or friends to live with, and halfway houses
128
Id.
129
Id.
130
Id.
131
James Hirby, If a Parent Goes to Jail, Can She Sign Over Custody to her Boyfriend
Using Power of Attorney?, LAW DICTIONARY, http://thelawdictionary.org/article/if-a-parent-
goes-to-jail-can-she-sign-over-custody-to-her-boyfriend-using-power-of-attorney/ (last vis-
ited Nov. 12, 2017).
132
Steve Christian, Children of Incarcerated Parents, NAT’L CONF. ST. LEGISLATURES
(Mar. 2009), at 5, http://www.ncsl.org/documents/cyf/childrenofincarceratedparents.pdf.
133
GLAZE & MARUSCHAK, supra note 20, at 5. According to the same survey, when chil-
dren had an incarcerated father, 84.2% lived with their other parent and only around 3% ended
up in foster care. Id.
134
Angeli R. Rasbury, Out of Jail, Mothers Struggle to Reclaim Children, WOMEN’S E-
NEWS (Sept. 17, 2006), http://womensenews.org/2006/09/out-jail-mothers-struggle-reclaim-
children/.
135
Id.
136
Id.
137
Id.HALTER 5/31/18 1:32 PM
2018] PARENTAL PRISONERS 553
do not allow children.138 For these reasons, once parental rights are termi-
nated, it is usually final.139
IV. FOURTEENTH AMENDMENT RIGHT TO PARENT
This Comment argues that courts should recognize that incarcerated
women have a fundamental right under the Fourteenth Amendment to parent
their children. Consequently, state and federal prisons in the United States
should be required to provide options to facilitate that right.
The Fourteenth Amendment provides that no state shall “deprive any
person of life, liberty, or property, without due process of law.”140 It protects
individuals from government interferences with their fundamental rights and
liberties.141 The Supreme Court has long recognized that parents have a right
to control and direct the upbringing of their children under the Due Process
Clause of the Fourteenth Amendment.142 In Prince v. Massachusetts, the Su-
preme Court recognized parents’ fundamental right to make decisions con-
cerning the care, custody, and control of their children.143 In Prince, the
Court weighed the interest of the parent versus the interest of society in pro-
tecting the rights of children, acknowledging that while prior precedent es-
tablished a parent’s right to care for his or her child, the right to parent does
not entirely nullify the state’s ability to act in the best interest of the child.144
In Quilloin v. Walcott, the Court reaffirmed that the relationship between par-
ent and child is constitutionally protected.145 In Quilloin, a biological father
claimed that he was entitled, as a matter of Due Process and Equal Protection,
to an absolute veto over adoption proceedings of his biological child, absent
a ruling that he was unfit to parent.146 While ultimately prioritizing the
child’s well-being over the father’s interest, the Court acknowledged the im-
portance of constitutionally protecting the parent-child relationship.147
In Troxel v. Granville, the Court went even further and held that the
Constitution recognizes a fundamental right to parent.148 In this case, the
liberty interest at issue was a mother’s care, custody, and control of her chil-
138
Id.
139
Farmer, supra note 35.
140
U.S. CONST. amend. XIV, § 1.
141
Troxel v. Granville, 530 U.S. 57, 65 (2000).
142
Id. at 65–66.
143
Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
144
Id. at 166–69.
145
Quilloin v. Walcott, 434 U.S. 246, 255 (1978).
146
Id. at 246–47.
147
Id. at 255.
148
Troxel v. Granville, 530 U.S. 57, 72–73 (2000).HALTER 5/31/18 1:32 PM
554 HALTER [Vol. 108
dren, which the Court acknowledged was “the oldest of the fundamental lib-
erty interests recognized by this Court.”149 The Court discussed that in light
of the extensive precedent, the Due Process Clause obviously protects the
fundamental rights of parents to make decisions concerning the care, custody,
and control of their children.150
Troxel concerned a visitation petition and a Washington state statute that
allowed any person to petition the court for visitation at any time as long as
the visitation was in the best interest of the child.151 The Washington statute
did not give the desires or opinions of the parent any additional weight when
deciding what was best for the child.152 The Court ultimately held that the
Washington statute was unconstitutional, explaining that the lower court did
not find, nor did the plaintiff allege, that the defendant was an unfit parent.153
Incarcerated mothers should be able to make a claim that they have a
right to parent their children because Troxel established a constitutionally
protected right for mothers to parent their children in all instances, unless
they are deemed to be unfit.154 Opponents may argue that incarcerated moth-
ers are unfit parents because they have been convicted of a crime, and there-
fore, Troxel does not give them the right to parent while incarcerated.155 Ac-
cording to Troxel, however, so long as a parent adequately cares for his or
her child, there is no reason for the state to inject itself.156 Just because a
woman is incarcerated does not mean that she has not, or cannot, adequately
care for her child. Because of the structure of our criminal justice system and
various drug laws, which will be discussed later in this Comment, women are
often incarcerated for crimes entirely unrelated to their ability to parent.157
No Supreme Court decision has ever deemed all incarcerated parents to be
unfit.158
Opponents also argue that the very nature of prison itself makes incar-
cerated mothers unfit to parent.159 Regardless of whether the mother is capa-
ble of being a good parent, the very fact that she would have to raise her child,
surrounded by convicted felons, guards, threats, and perhaps violence may
mean that no matter how hard an incarcerated mother tries, she will be unable
149
Id. at 65.
150
Id.
151
Id. at 60.
152
Id. at 69.
153
Id. at 68.
154
See generally id.
155
Id.
156
Id. at 68.
157
See generally Coutts & Greenberg, supra note 91; see infra Part VII.
158
Based on a survey of United States Supreme Court precedent.
159
Dwyer, supra note 30, at 485–92.HALTER 5/31/18 1:32 PM
2018] PARENTAL PRISONERS 555
to provide a suitable environment in which to raise her child.160 While this
argument is valid, both prison nurseries and community-based residential
programs are designed specifically to feel more like a home for infants and
young children than the regular prison environment.161 Furthermore, while
prisons may be a less than ideal place for a child to grow up, they may often
be better than an uncertain life outside prison.162 Evidence suggests that be-
cause mothers are frequently the primary caregivers, the imprisonment of
mothers can destroy a family in a variety of ways, making the lives of her
children difficult.163 Parental incarceration often creates economic strain on
households, leaving children with caregivers who are not financially capable
of meeting their needs.164 Children of incarcerated parents are also often
forced to move and change schools, which introduces massive uncertainty,
posing a risk to children’s healthy development.165 Children who at some
point had a parent incarcerated have been found to be at significantly greater
risk of experiencing material hardship and familial instability, such as lower
standards of living, inability to find stable housing, divorce, and “non-routine
school changes.”166
Furthermore, at present, most incarcerated women are in prison for non-
violent crimes, 167 suggesting that they pose a far lesser risk, if any at all, to
their children and to society at large. In fact, roughly 84% of women are
incarcerated for nonviolent crimes, a majority of which are drug-related.168
Despite the extensive Supreme Court precedent recognizing parental
rights and the importance of familial preservation, the Supreme Court is will-
ing to erode the rights of prisoners by arguing that imprisonment by its very
nature involves the abridgement of many rights.169 In Overton v. Bazzeta, the
plaintiff brought a suit alleging that a Michigan regulation restricting the vis-
itors of prison inmates violated substantive due process under the Fourteenth
Amendment and the First and Eighth Amendments, as applicable through the
Fourteenth Amendment.170 While the Constitution guarantees (and the Su-
preme Court recognizes) a person’s freedom to associate, the Court held that
the restriction did not violate the Constitution because the state had a security
160
Id.
161
Jbara, supra note 46, at 1837.
162
See generally Kristof, supra note 23.
163
Id.
164
Christian, supra note 132, at 3, 9.
165
Id. at 3.
166
Id.
167
Coutts & Greenberg, supra note 23.
168
Id.
169
Overton v. Bazzeta, 539 U.S. 126, 131 (2003).
170
Id. at 129–30.HALTER 5/31/18 1:32 PM
556 HALTER [Vol. 108
interest in limiting the number of visitors that inmates had.171 The Court ex-
plained that because the purpose of prison is confinement, prisoners surren-
der many of the liberties and privileges enjoyed by other citizens, one of those
liberties being the freedom to associate.172 Similarly, the Ninth Circuit noted
in Gerber v. Hickman that “a necessary corollary to [incarceration] is the sep-
aration of the prisoner from his spouse, his loved ones, his friends, family,
and children.”173 Following similar logic, it is possible that the Supreme
Court could extend this logic to the ability of mothers to parent while incar-
cerated, suggesting that they lose that right at the prison door.
That being said, this Comment argues that a mother’s fundamental right
to parent should be protected even during incarceration under the precedent
established in Turner v. Safley.174 In Turner, the Court was asked to deter-
mine the constitutionality of two Missouri Division of Corrections regula-
tions.175 The first regulation permitted an inmate to marry only with super-
intendent approval, which could only be given when there was a “compelling
reason[] to do so.”176 The second regulation prohibited all inmate corre-
spondence between prison facilities, unless the inmates were family members
or discussing legal matters.177 The Court provided a new rule for analyzing
the constitutionality of regulations that restricted an inmate’s constitutional
rights, deciding that if a regulation interferes with an inmate’s constitutional
rights, the regulation is valid as long as it “is reasonably related to legitimate
penological interests.”178 The Court set out four factors to evaluate when
deciding whether a regulation “reasonably related to legitimate penological
interests”: (1) whether there is a “valid, rational connection” between the
prison regulation and the legitimate, neutral government interest justifying it;
(2) “whether there are alternative means of exercising the asserted constitu-
tional right that remain open to inmates;” (3) “the accommodation of the as-
serted constitutional right will have on guards and other inmates, and on the
allocation of prison resources generally;” and (4) “the absence of ready alter-
natives is evidence of the reasonableness of a prison regulation.”179
Ultimately, the Court upheld the restriction on correspondence, holding
171
Id. at 133.
172
Id. at 131.
173
291 F.3d 617, 620 (9th Cir. 2002) (relying on the Court’s rationale in Montayne v.
Haymes, 427 U.S. 236 (1976)).
174
See generally Turner v. Safley, 482 U.S. 78 (1987).
175
Id. at 81.
176
Id. at 82.
177
Id. at 81.
178
Id. at 89.
179
Id. at 90.HALTER 5/31/18 1:32 PM
2018] PARENTAL PRISONERS 557
that it was reasonably related to a legitimate security interest.180 However,
regarding the marriage restriction, the Court held that there was no reasonable
relationship between the restriction and a “legitimate penological interest.”181
Because the right to marry is a constitutionally protected right, it is subjected
to restrictions in prison, but cannot be denied.182 The Court reasoned that
because inmate marriages are expressions of emotional support and public
commitment, many religions recognize marriages as having spiritual signifi-
cance, most inmates will eventually be released, and marital status is often a
precondition to the receipt of government benefits and rights, the marital
rights of prisoners are protected.183
V. THE LOGIC OF TURNER GRANTS INCARCERATED MOTHERS THE RIGHT
TO PARENT
A survey of United States Supreme Court precedent confirms that
Turner184 is the most applicable case when analyzing whether incarcerated
mothers should have the right to parent. Turner provides the best argument
for why the parental rights of incarcerated women should be protected under
the Fourteenth Amendment. 185 Applying both the Turner factors, as well as
the policy justifications provided by the Court,186 to the issue of parental
rights of incarcerated mothers, the courts should protect the parental rights of
incarcerated mothers under the Fourteenth Amendment. This Part will first
apply the Turner factors to the issue at hand.187 Then, it will apply and com-
pare the policy justifications put forth in Turner.188 Ultimately, this section
concludes that under Turner, 189 incarcerated mothers should be provided the
opportunity to remain with their infants during incarceration.
Using the Turner framework, the ultimate question is whether denying
an incarcerated mother the right to remain with her newborn is “reasonably
related to legitimate penological interests.”190 The most persuasive “peno-
logical interest” commonly used to justify regulations or policies that deprive
180
Id. at 91. According to the Court, a legitimate security interest existed because mail
between penal institutions could be used to communicate escape plans or arrange acts of vio-
lence. Id.
181
Id. at 95.
182
Id.
183
Id. at 95–96.
184
Id.
185
Id. at 89.
186
Id.
187
Id.
188
Id.
189
Id.
190
See generally supra Part IV.HALTER 5/31/18 1:32 PM
558 HALTER [Vol. 108
incarcerated mothers the right to parent is that the state has a legitimate in-
terest in protecting the child, and growing up in prison is not in a child’s best
interest. 191 Thus, this is the penological interest that will be analyzed using
the Turner factors.
The first factor is whether there is a “valid, rational connection” between
the regulation and the legitimate, neutral government interest to justify it.192
A regulation will be struck down if the “logical connection is so remote as to
render the policy arbitrary and irrational.”193 There is likely a valid, rational
connection between disallowing children to remain with their incarcerated
mothers and protecting the interest and well-being of the child. Prison can
be dangerous, isolating, and stressful.194 Thus, it makes sense for the gov-
ernment to be hesitant about exposing young children to prison life. It is
possible that other inmates in the prison could retaliate out of jealousy that
some women are allowed to remain with their children or that infants could
get hurt by another inmate or their own mother.195
The government could argue that its objective in denying this right is
legitimate and neutral because on its face, no one group of people is targeted.
However, given the way in which children of color are disproportionality af-
fected by denying incarcerated mothers the ability to bond with their child,196
it could be argued that the objective is, in fact, not neutral. Because people
of color are more likely to be imprisoned, black and Hispanic children are
overrepresented among the numbers of children with incarcerated parents.197
In 2007, one in fifteen black children and one in forty-two Hispanic children
had a parent in prison, compared to only one in 111 white children.198
Second, there are no reliable “alternative means” for a mother to exer-
cise her right to parent outside of being allowed to remain with her infant in
some capacity through some prison program. Other methods of parenting
children from within a prison are visits, telephone calls, and letters, all of
which are hardly options for infants and are not viable for reasons that will
be discussed in the policy section of this Comment.199
191
Dwyer, supra note 30, at 486–92.
192
Turner, 482 U.S. at 89.
193
Id. at 90.
194
Dwyer, supra note 30, at 485, 487–88.
195
Id. at 488–91.
196
See Ahrens, supra note 41, at 9; Fact Sheet: Parents in Prison, SENT’G PROJECT 2
(Sept. 2012), available at https://www.sentencingproject.org/publications/parents-in-prison/;
Jennifer Polish, Children of Incarcerated Parents: What Are Their Rights?, L. STREET MEDIA
(July 8, 2015), https://lawstreetmedia.com/issues/law-and-politics/children-incarcerated-par-
ents-rights/.
197
Id.
198
See generally Fact Sheet: Parents in Prison, supra note 196.
199
See generally Part V.HALTER 5/31/18 1:32 PM
2018] PARENTAL PRISONERS 559
Third, allowing incarcerated mothers to remain with their infants would
not have negative impacts on guards, inmates, or prison resources. When a
particular policy would have a “ripple effect” on other inmates or prison staff,
courts should be “particularly deferential to the informed discretion of cor-
rections officials.”200 However, there would not be a “ripple effect” for
guards because incarcerated women who are permitted to remain with their
children tend to be mentally healthier,201 thus likely making the job of a
prison guard easier. The incarcerated mothers are likely to be more agreeable
and easier for the guards and fellow inmates to get along with. Another plau-
sible safety argument is that these incarcerated mothers, or other women in
the facility, may lash out at the infants.202 However, the current programs in
existence restrict participation to women who have not committed violent
offenses and have a clean prison record.203 It is possible that other inmates
will get angry and lash out at those allowed to remain with their children;
however, once the right to parent while incarcerated is recognized, programs
could be expanded to more than just the mothers of infants, thus benefiting
many mothers in prison.204 Furthermore, in most current programs, incarcer-
ated mothers who remain with their children are separated from the general
population, decreasing the risk of outbursts and violence.205 As a result, the
additional risks posed to infants and young children by living with their in-
carcerated mothers that exist206 are likely minimal and outweighed by the
benefits.207 The state could also argue that it would be expensive, but again,
these programs have the potential to save prisons money in the long run.208
Finally, the lack of an alternative is not evidence of the reasonableness of the
prison regulation because alternatives do exist in prisons in some states, just
not a majority.209
The fourth and final factor for courts to consider is the presence or ab-
sence of ready alternatives, which goes to the weight of the reasonableness
of the prison regulation.210 If there is “an alternative that fully accommodates
the prisoner’s rights at a de minimis cost to valid penological interests, a court
200
Turner v. Safley, 482 U.S. 78, 90 (1987).
201
Jbara, supra note 46, at 1829.
202
Dwyer, supra note 30, at 490–91.
203
Warner, supra note 20, at 72.
204
Dwyer, supra note 30, at 488.
205
Warner, supra note 20, at 72–73.
206
See Dwyer, supra note 30, at 488.
207
See generally Warner, supra note 20, at 72–73.
208
Parent-Child Interactions within Correctional Systems, 29 CHILD. L. PRAC. 74, 74
(2010).
209
See supra Part II (detailing the availability of prison nursery programs).
210
Turner v. Safley, 482 U.S. 78, 90 (1987).You can also read
